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The Politics of Religion

Thirteen Roman Catholic dioceses and some Catholic-related groups scattered lawsuits across a dozen federal courts last week claiming that President Obama was violating their religious freedom by including contraceptives in basic health care coverage for female employees. It was a dramatic stunt, full of indignation but built on air.

Mr. Obama’s contraception-coverage mandate specifically exempts houses of worship. If he had ordered all other organizations affiliated with a religion to pay for their employees’ contraception coverage, that policy could probably be justified under Supreme Court precedent, including a 1990 opinion by Justice Antonin Scalia.

But that argument does not have to be made in court, because Mr. Obama very publicly backed down from his original position and gave those groups a way around the contraception-coverage requirement.

Under the Constitution, churches and other religious organizations have total freedom to preach that contraception is sinful and rail against Mr. Obama for making it more readily available. But the First Amendment is not a license for religious entities to impose their dogma on society through the law. The vast majority of Americans do not agree with the Roman Catholic Church’s anti-contraception stance, including most American Catholic women.

The First Amendment also does not exempt religious entities or individuals claiming a sincere religious objection from neutral laws of general applicability, a category the new contraception rule plainly fits. In 1990, Justice Scalia reminded us that making “the professed doctrines of religious belief superior to the law of the land” would mean allowing “every citizen to become a law unto himself.”

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In 1993, Congress required government actions that “substantially burden a person’s exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy.

And there was no violation of religious exercise to begin with. After religious groups protested, the administration put the burden on insurance companies to provide free contraceptive coverage to women who work for religiously affiliated employers like hospitals or universities — with no employer involvement.